primary rules
dos and donts
secondary rules
establish a process for making primary rules
supports primary rules
rules about how to change primary rules
rules of recognition
identify secondary rules and develops processes for developing and reforming them
customary law
"general practice accepted as law"
widespread and consistent state practice
inductive/deductive approach to determining customary law
inductive: survey list, look at archives, specific observation to make a general conclusion deductive: preconceived ideas, general theory to specific conclusion
jus cogens
basic principles
general and unbroken law
peremptory norm
opinio juris
belief in legal obligation
persistent objector
objects to customary law"
I have never done that therefore I object"
positivism
opting in on a rule by rule basis, assessing the validity and how the law or norm came to be
voluntarism
states opt into international law through social context, states don't have control over rules that apply to them
jus gentilli
natural law
laws of morality or acts in which all society has some sort of rule regarding
realism
state is central actor/ groups as unit of analysis self-interested/ inherently competitive
Human nature viewed pessimistically
The system as anarchic Amoral realm
structural realism
international system is anarchic and that determines state behavior, states are rational
classical realism
struggle for power, human nature is the cause of conflict, balance of power
defensive realism
moderates strategy because more power through aggressive expansion creates a security dilemma, balance of power
offensive realism
states seek security through power maximization and security is scarcewant to be hegemon
liberalism
considers social interest and values of state in addition to the balance of power
The international system as anarchic
human nature tends toward cooperation
groups inherently independent
analysis of individuals and groups
ideational liberalism
considers intersection between social preferences varying collective good such as national unity and good governance-values and social identity determine state performance-foreign policy reflects domestic society
commercial liberalism
emphasis on role of globalization, trans-border economic transactions-trade allows states to enter into deeper cooperation-changes in market structure alter costs and benefits of trade-states seek to accumulate wealth and war risks that
republican liberalism
examines nature of domestic representation and considers which groups may use foreign policy to pursue their own domestic end-domestic institutions transform social identity and economic interest into state policy-who has power of preferences ... elities-elite preferences
constructivism
ideation vs. material"the meanings that we attach to objects matter more than the objects themselves"nonmaterial arguments for state power
state perception of anarchy shapes the culture of the international system
coordination versus cooperation
liberalism collaboration-working with someone with different interests-mutually beneficial-compromise-risky-hard so need institutions
vertical versus horizontal means of compliance
domestic law: vertical
international law: horizontal-equal enforcement of laws and all states are technically created equal
taboo
constructivist idea that some things are forbidden via social normsex. nuclear taboo
friendship, rivalry, enmity
cultures of anarchy f
riendship: perpetual peace
rivalry: pragmatic cooperation
enmity: competition
norms
beliefs about appropriate behaviorlogic of appropriateness takes into account social norms
logic of consequences versus logic of appropriateness
consequences: logic in which states evaluate the costs and benefits of a particular plan (all ideologies)
appropriateness: logic that takes into account social norms (constructivists)
sources of international law
-judicial scholarship (opinio juris)
-treaties/ international conventions
-customary law
- basic principles (jus cogens)
ergo omnes
an act, decision, or judgement that impacts all parties, not just those directly concerned
tout court
law is only binding on signatories
types of treaties
oral or written
bilateral versus multilateral
contract versus law
self executing (automatically becomes binding under terms of treaty itself) versus declaration of intent (after a certain number of states ratify)
treaty formation process
negotiations-those with credentials from state have full power to negotiate with other parties-no coercion
signature-agreeing to wording
ratification-express willingness to be legally bound by treaty
reservations-express reservations that exclude or modify the legal effect of their regulations-must be made when state consents to be bound-not bound by items they see as objectionable-must be accepted by other states party to treaty-occasionally not permitted
entry into force-self executing or self determined
registration-copies sent to UN secretariat-prevents secret treaties
Vienna convention on law of treaties
every treaty in force is binding and must be performed by the parties in good faithinternal law provisions are not justification to fail to execute a treaty
rebus sic stantibus
legal doctrine allowing for a contract or treaty to become inapplicable because of a fundamental change in circumstance
pacta sunt servanda
do not break treaties
treaties have to be upheld unless very specific conditions
material breach
one party entitled by another to suspend/terminate
cannot be multilateral treaty"a violation of a treaty provision essential to accomplishment of the object and purpose of the treaty"
impossibility of performance
if an object indispensable for execution disappears or is destroyed
self executing treaty
automatically becomes binding under terms laid out in treaty itself
sole executive agreements
an agreement between the heads of government of two or more nations that has not been ratified by the legislature as treaties are ratifiedconsidered politically binding to distinguish them from treaties that are legally binding
US constitution and treaties
most treaties are executive agreements
congressional executive agreements must have approval by both houses of congress
sole executive: president exerting power alone
constitution overrules international rule
US domestic hierarchy of laws
1.US constitution
2. International agreements and treaties are equal with federal statutes
conducts: last in time prevails
monist vs. dualist
monist: international and domestic law intersect
dualist: international and domestic law is different so treaties don't have constitutional power unless they get domestic legislation
constituent treaties
multilateral agreement that sets up an international organization
memorandum of understanding (MOU)
a document that describes the broad outlines of an agreement that two or more parties have reachedcommunicate mutually accepted expectations of all the parties involved in a negotiationnot legally binding
Montevideo convention (state)
a state must possess a permanent population, a defined territory, a government, the capacity to conduct international relations
de facto recognition
actual and effectual recognition of a government without formal recognition by law; recognizing a government has control of an area, weaker than De Jure.
de jure recognition
gives government formal, legal recognition, UN membership
constitutive versus declaratory view of recognition
constitute: recognition of an entity as a state is not automatic-only a state when it is recognized as such and other states have considerable discretion to recognize or not
declaratory: a state exists without total recognition which is merely an acknowledgment of an existing situation
secession
separates itself
succession
remakes itself
uti posidetis juris
newly formed sovereign states should retain the internal borders that their preceding dependent area had before their independence
self determination
the right of the people to choose their own form of government and legal destiny
terra nullis
land doesn't belong to anyone
sovereignty
responsibility: take care of peopletraditional sovereignty: within borders
occupation
exclusive occupation for an extended period
historical results in sovereignty claims right to occupy and administer based
conquest
not legal under UN charter
cession
deeding via international agreement of territory from one state to another
prescription
is sovereignty transfer of a territory by the open encroachment by the new sovereign upon the territory for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign.
accretion
Terriotrial increases by natural processes, like a new formation of land within territorial watersex. shifting river bed of rio grande
belligerent versus humanitarian occupation
belligerent: no right to sovereignty
-occupiers can only use resources of territory that are necessary to administer state and meet needs of population
-maintain order and security
humanitarian: international organization or state
-no right or claim to sovereignty
-in times of crisis
UNCLOS
United Nations Convention on the law of the sea
territorial/contiguous zones/exclusive economic zones/high sea zones
-12mn from baseline is under absolute sovereignty
-24nm from baseline is limited jurisdiction/contiguous
-200nm from baseline is limited jurisdiction/exclusive economic zones
res communis
high seasterritory that no one owns, not legal to assert any authority or jurisdiction over
innocent passage
"as it is not prejudicial to peace, good order, or security of coastal state"
baseline
the line from which the extent of the territorial sea is measured
mare clausum
the closed sea, under sovereignty of a power, restricted in terms of use by other states
mare liberum
seas open to all nations
cannon shot rule
the extent to which a nation could control its coastal waters was largely based on the reach of cannons off of shore
transit passage
allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a strait between one part of the high seas or exclusive economic zone to another
military objective
an object which by its nature, location, purpose, or use makes an effective contribution to the military action or whose partial or total destruction, capture, or neutralization offers, in the circumstances ruling at the same time, a definite military advantage
combatant versus noncombatant
combatant: members of armed forces
-hierarchical command structure
-distinctive sign
-carries arms openly
-conducts operations in accordance with customs and laws of war
noncombatant:-medical personnel
-chaplains
-wounded
-shipwrecked
-civilians
discrimination
-legitimate targets in war
-civilians not appropriate targets of war
-must distinguish between civilian and non-civilians in targeting
proportionality
idea of countermeasures limits:
1. proportional to harm suffered
2. do not violate laws of war in countermeasure
-respond in a similar manner
-responsibility to protect
-international humanitarian law
ad bellum
"before war" when and why force may be used
in bello
"during war" how force may be used, what sorts of persons and structures can be targeted
unlawful combatants
illegal combatants: militia, lack of central command, legal/moral equality of combatants
-cannot be imprisoned just for fighting
additional protocol 1
1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international conflicts, extending to "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes" are to be considered international conflicts
geneva conventions
from core of international humanitarian law, regulates the conduct of armed conflict and seeks to limit its effects
hague conventions
one of first international conferences on peace
-banned asphyxiating gases and projectiles
-prohibited attack or bombardment of towns, villages, etc. which are not defended
-pillaging prohibited
-occupying power should not use economic means to devastate regions unless necessary
UN Charter on the use of force
all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any stateforce is still a legal response to aggressionthe security council should determine if and how force is used to control a states' act of aggressiondoes not define force or aggression
genocide
the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group
aggression
the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state
countermeasures
measures taken by a state in response to the internationally wrongful act of another State and aimed at inducing the latter state to comply with its legal obligations
preemption
Is legal, defined by the caroline standard. legal defense-overwhelming threat-imminent-leaving no choice but to act now to preserve oneself-requires significant intelligence
prevention
ilegal the US invading Iraq.
Caroline standard
boundaries of legitimate self defense preemptive or preventive attack
-overwhelming threat
-imminent
-leaving no choice but to act now to preserve oneself
-requires significant intelligence
international governmental organizations
involves two or more sovereign states established by a treaty is permanent possesses autonomous decision making capability
nongovernmental organization
private, voluntary organizations made up of individuals or associationsmay be funded privately or partial government support but cannot be entirely government support
immunity
extended to diplomatic officials and actors working on behalf of their state, but the level of protection is staggered
do no harm
states have the responsibility to prevent harm caused as a result of an active disposition on/over their territory
due dilligence
by which such breaches are evaluated, must take all measures to prevent harm
polluter pays
polluter should in principle bear the costs of pollution with due regard to public interest and without distorting trade and investments
transboundary harm
harm caused in the territory of or in other places under the jurisdiction or control of a state other than the state of origin, whether or no the states concerned share a common border
Trail Smelter case
trail smelter tribunal with Canada and US
-under the principles of international law, no state has the right to use territory to allow injury to a neighboring territory property or persons therein
stockholm/rio framework
prevention of environmental harm precautionary approach polluter pays
sustainable development
Paris agreement
legally binding international treaty on climate change adopted by 196 parties at COP21 in Paris in 2015 and entered into force in 2016
goal is to limit global warming to well below 2 degrees celsius compared to preindustrial levels
tragedy of commons
situation in which people acting individually and in their own interest use up commonly available but limited resources, creating disaster for the entire community if everyone acts, everyone benefits, even those who didn't take action would benefit if they did enough to restrict
Kyoto Protocol
operationalizes the United Nations framework convention on climate change by committing industrialized countries and economies in transition to limit and reduce greenhouse gasses/emissions in accordance with agreed individual targets. US signed but did not ratify
CITIES treaty
an international agreement designed to ensure that international trade in animals and plants does not threaten their survival in the wild
humanitarian intervention
use of force by one state or group of states against another to protect civilians facing violence of egregious human rights violations
-without consent of the state
-builds into R2P emerging norm in international community
-prevent, protect, rebuild